Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-10-29
COURT OF APPEALS.
Synepses OF Decisions Rendered at the
Present Sitting Of the APP
palate Court.
Opinions Hard.d Down In a Number OF
Long Contested Cabes-New
Rulings
Corespondence of the Gazette.


TYLER, TEX, Oct. 27.-Joe and John
SON Heard VS.. the State; appeal from
Harrison. This appeal is from a convic-
ton of both appellants for the murder of
their stepiather, Kinney, the verdict and
Judgment being for murder>in the first
degree, with punishment in the peniten-
tiary for life. The objection urged to the
definition, or rather the application, OF
the law Of express malice, in that it is
general as to "the design to kill" and
does not limit it TO particular design TO
kill the deceased, is, we think, hypercrlN-
Cal. a charge should be considered as
whole in Judging Of it's efficiency. Taken
as q whole, the charge is sufficient, espe-
cislly in the absence OF special instruc-
lions simplifying it, il desired. No one
could have possibly been mislead as to the
party against whom the design to Kill
must have been entertained in order, IN
der the charge, TO warrant g finding OF
express malice. Defendants were for
trial for the murder OF Kinney and no one
else. Affirmed. White, 2. j.
Joe Blsih vs. the State; appeal from
Gonzales. Declarations CT a co-deIendsnt
If such declarations were even made be-
fore the arrest of said co-deferdant are
not admissible, and the court did not err
| in so holding "Persons charged as prln-
cipals, aCcompliceF, or accessories,
whether in the same Indictment, or IN
different indictments, can not be intro
duced IS witnesses for each other" e.
&c P. art 731, P G. art. 81, 20 G. A. Al,
G A 202. The same rule of exclusion
would of coarse, for an additional reason,
apply to the declarations Of such priuci-
pal, accomplish or accessory, unless the
stmesconstiIute part Of the res gest3
| No reversible error. Affirmed. Wilson,
j.
D. Tinney VS.. the State; sppeal from
| Gonzales. It was alleged in the indict-
ment thst the stolen horse belonged TO,
and was taken from the possession of M. Z.
DoyeI, l. sppears thst$he horse left
| Doyal's premises in Gonzales county, with
& bell on and strayed of. Tnis Was l7th
of July. On the 18Th Of July, twelve
miles from home, in Caldwell county. the
horse WAS seen. On the 2lst it was taken
up by one Hurst, who, after making IN
curry for the owner and fai ing to find
him, took the horse TO his home, intend
ing to estrSy him, and there steked him
out in his field and fed him. That night
the horse disappeared, and WAS next seen
in possession of defendant July 24, in
Dewitt county, where defendant sold him
TO one Jones. On this siste OF facts II Is
insisted that there W2S, and is, & fatal Va
rance between the allegation and proof
SIS to the party from whose possession
the animal wgs stolen. In word II Is
contended that the animal WAS stolen
from the possession OF Hurst, and not ci
Doyal. Held: The intention OF Hurs'
was 10 estray the horse, bu
before he had time to dc
SO, it WAS stolen from him
When stolen it was it his "actual care
Ecoutrol, and management" for he has i!
stlkeG aiat in MS field, where he had fec
f. sEAEtual Csre, control and manage
Jfn6nt' Isl expressly declared by our ls8
80 constitute the lsslessession" conte m
y plated Id cur ssaETse Of theft. ? G 724
I 729, c. -. p, art. 426-lS c. a 427-li
c. 4 1870 G. A. 1913 ] Tie indie
ment must allege thaG he defendant
took the properly from the possession o.
some person. This person must b.
named, and the person must have posses
sion, actual or constructive, OF the prop
erty ct the time it is taken II his rela
ton to the property is rendered closer o.
nearer than that OF the reel owner 81
reason or the fact that he Is in actual care
control of management OF the property
then in that case the person bearing suct
relation is the proper person Ia whom &c
allege the possession, 20 G. A. ia
There is total variance between the al
egation and the proof. as to the person
from whom the horse was stolen. Re.
versed and remspded. White, 2. j.
Bud McAdems Va. the Stse; appea
from Shelby. Appellant, together witt
lJohn PAden, Petely Piden, James Piden
SEHenry ChuthleY, Henry Beckett, vii
booth andsWEsh Ffournoy. were Jointly
Isndicsed5or the rape Of Minerva Horton
Ga MEYF19, 1887, the case was called foi
trial, Whereupun counsel for the state en-
tered nolle proseQui as to WIN Booth
Henry Beckett, Henry CnumleY and Vast
Flournoy, snd appellant had these psrtie
recognized as witnesses N his behalf
The trial began May 20. On the mornln:
| of the next day appellant for the hrs'
time discovered the absence OF Viii
Booth, and promptly issued 81 attach
lment for witness, which Was returned
ssnot found in the county" Appelian
then asked leave to Withdraw his an
nouncement OF ready for trial, settiD:
Ill dOOtC AC3@Ict cL4S NEAi~% ~ -"'S -~~'AA
the application for continuance in legs
form The application was overruled ant
appellant served his bill Of exceptions
In his application to withdraw announce
! ment ana TO continue the-case, oppelisn
swesrs that he expects to prove certaii
iscts by Booth, who, it is alleged, was a
Horizons at the time OF the supposed
rape. Our statute provides that wher
an application to continue has oeen over
ruled, and the defendant convicted,
new trial should be grantees If it lappear
: upon the trial that the evidence OF tn
absent witness or Witnesses was materia
and that the facts set forth in the appli
cation are probably true. [Subdivisiol
h. 6, Ars 560C. ca II there is such
conflict between tbs inculpatory fact
L and those set forth in the application a
! to render it improbable that the fact
stated in the application are material snt
probably true the continuance should b.
= refused. The ircuIpstory facts must b
so strong and convincing as to rendt tn
truth of the facts set forth in the applics
'yk&fon improbable. This, however, no
not been shown in this case
On the contrary it is clearly shown tha
, the evidence of the sbsent witness Boot
q nhShl